Judge rules in favour of Oppenheimers versus Gigaba

In a week that saw financial markets take a sharp view on the creditworthiness of the country following minister Gigaba’s maiden budget policy statement, it is hard to misplace the irony of a judge in the North Gauteng High Court calling his version of events “uncreditworthy”.

But this was exactly what unfolded last week, as Judge Sulet Potterill on Friday delivered her judgment in the highly publicised case between the Oppenheimers’ Fireblade Aviation and minister Gigaba in his capacity as the Minister of Home Affairs.

The judgment related to an application made by Fireblade, to have an ad hoc international customs and immigration service available at the corporate fixed base aviation operation that Fireblade has built at OR Tambo airport.

Essentially, Fireblade invested in a seven-star facility which, up until the judgment had been delivered, was used by travelling VVIP’s as a stop-over between domestic flights. Fireblade wanted to expand the use of the facility for guests arriving from international destinations and thus sought, over a period of five years and countless jumping-through-regulatory-and-administrative hoops, the blessing of government to have officials from the Border Control Operational Coordinating Committee (BCOCC) man the facility for the processing of international flights.

Airports Company South Africa (Acsa) supported the initiative because it enabled it to reorganise commercial business aviation at OR Tambo. There is a “dire need for these premium products at the largest airport in Africa and the lack of these facilities is definitely tarnishing our brand,” Acsa had said. The facility is built on land owned by Acsa and managed by Denel properties.

Approvals from various government departments and agencies were eventually given and this culminated in a meeting on January 28 2016 between the Department of Home Affairs, represented by Malusi Gigaba, and Fireblade Aviation, represented by chairman Nicky Oppenheimer. The minutes show that Malusi Gigaba had approved the facility for international arrivals and departures and that the approval letter would be released with a formal letter addressed to Fireblade.

The Court was asked to rule on whether the reasons given by the minister to first suspend, and then rescind, his original decision were justified in the eyes of the law. Judge Potterill methodically struck out all of the excuses and reasons proffered by minister Gigaba on his about turn, variously calling the arguments and representations he put forward as ‘spurious’, ‘fundamentally flawed’, ‘laboured’, ‘meritless’, ‘bad in law’, ‘nonsensical and palpably untrue’, and ‘uncreditworthy’.

So, pretty damning? Yes.

Judge Pottrill also decried the manner in which representations made by Advocates Tulk and Ngcukaitobi had reverted to name-calling and insults. “I am urged not to allow a court of law to serve, in the words of the Constitutional Court, as a ‘free for all insult trading contest…’”

Judge Potterill found in favour of Fireblade Aviation. “The ministerial approval issued in terms of prayer 1 above is of force and effect, and may not be renounced or revoked by the first respondent [the Minister of Home Affairs] without due cause and may be implemented and relied on by the applicant.”

The judge ordered the respondents to pay the legal costs of Fireblade.

Gigaba has indicated that he may appeal the judgment. We wait to see.

Brought to you by Moneyweb.